Argument preview: The Constitution and lying

Posted Sat, February 18th, 2012 12:02 am by Lyle Denniston

At 10 a.m. on Wednesday, the Supreme Court will hear one hour of oral argument on United States v. Alvarez(11-210), testing the constitutionality of a 2006 law making it a federal crime to lie intentionally about receiving a military medal or decoration. Arguing for the federal government will be U.S. Solicitor General Donald B. Verrilli, Jr., and arguing for a man convicted under that law, Xavier Alvarez, will be Jonathan D. Libby, a deputy federal public defender in Los Angeles.

Background

For the past three years, the Supreme Court has been unusually active in deciding cases that might have put some forms of speech or communication entirely outside the shelter of the First Amendment’s free speech clause. It has refused, each time, to create a new exception. It rejected claims to deny First Amendment protection for depictions of animal cruelty, protests at the site of military funerals, and violent video games. Though each of those kinds of expression might well offend or even outrage some parts of the public, the Court has been unwilling to allow that reaction to justify new loopholes in the First Amendment. In the case of United States v. Alvarez, the Court faces a new kind of utterance that can rouse deep emotions, often stirred by patriotic fervor.

The federal government, in the Alvarez case, has insisted that it is not trying to create a new exception — for lying on purpose — because it finds little if any protection in history for intentionally telling a falsehood. The case, though, is shaping up as a test of government power to ban lying, in and of itself. It might, indeed, require creation by the Court of a new exception to permit a criminal ban on lying — period. The Court, over the years, has been on both sides of the false statements issue, sometimes saying that such utterances are so lacking in social value as not to qualify as a protected form of speech, and sometimes saying that there are situations in which speaking falsely might have some value worth protecting.

Other forms of intentional lying have been subject to criminal prosecution, or civil lawsuit: some obvious examples are perjury in an official proceeding, defamation or libel, false statements during a government investigation, and statements that amount to fraud. Each of those involves something more than merely speaking, or writing, falsely: there has to be proof that the speaker or writer knew they were lying and intended some harm or consequence that such a law was seeking to avert. But even some of those, such as defamation and libel, do have exceptions that have First Amendment protection. The Court is now facing where, within the Constitution or beyond it, to place a federal law, which Congress labeled the “Stolen Valor Act.” It was passed in 2005 and took effect in 2006.

Under that Act, it is a minor crime (a “misdemeanor”) to “falsely represent . . . verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the armed forces of the United States.” Conviction of the crime can lead to a prison term of up to six months in prison. If, however, the false claim is that the individual had won the Congressional Medal of Honor, or some other highly prestigious decoration, the prison term can go up to a year. Although federal laws dating as far back as 1948 have outlawed false claims about winning military medals, Congress in 2005 appeared to be persuaded that those were insufficient to protect the military honors system from such fraudulent claims. The very title of the law shows what Congress had in mind: medals have always reflected unusual merit or bravery in military service (especially, but not exclusively, in combat), and that “valor” supposedly is stolen away by a false claim to it. The lawmakers apparently believed that it cheapens the honor for those who won it legitimately for imposters to lay claim to it.

There apparently have not been a great many prosecutions under the 2006 law, although one might presume that exaggerated claims of military honor might be fairly commonplace. But the specific prosecution that lifted the constitutional controversy to the Supreme Court involved a particularly vivid display of flat-out lying.

Xavier Alvarez, of Pomona, Calif., had been elected in 2006 as a member of the Three Valleys Water District, a water management agency of the California government that operates in eastern Los Angeles County; its home officers are in Claremont, Calif. On July 23, 2007, at a joint meeting of that agency with another water district, Alvarez rose to introduce himself. He did so by uttering what even his lawyers have conceded to the Supreme Court were “a bunch of whoppers.”

Here, from an audiotape recording, is what he said: “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

It is not clear why he said that. But one thing is definitely clear: he never served a day in the military. He was, rather soon, subjected to what his lawyers call a “public shaming,” earning such epithets in the community and local newspapers as an “idiot,” a “jerk,” “cretinous,” and “ultimate slime.” But he was also subjected to prosecution for two counts of violating the Stolen Valor Act, after the FBI got hold of the recording. He tried to have the charges dismissed, on First Amendment grounds, but the District Court judge refused. He pleaded guilty, on condition that he retain a right to appeal to press his First Amendment challenge.

He was sentenced to three years on probation, ordered to do 416 hours of community service, and fined $5,000. He then appealed to the Ninth Circuit Court, and won. In a divided 2-1 ruling, the Circuit Court panel struck down the law as written, finding that it could not be enforced constitutionally in any circumstances. The law, the panel majority found, was too broadly written to achieve its end of protecting military medals from being compromised.

“We find,” the majority said, “no authority holding that false factual speech, as a general category unto itself, is among . . . those classes of speech which can be prohibited without any constitutional problem.” It said it could not read into the law an exception, urged by the government, that the law only sought to punish someone who, in lying about a military medal, had acted “with malice,” intending to cause injury. In pursuing charges for violating the Stolen Valor Act, the panel said, federal prosecutors do not have to offer any proof that such a lie did any harm to the reputation and meaning of such decorations.

At the time the federal government took the case on to the Supreme Court, no other federal appeals court had ruled on the law’s constitutionality. However, on January 27, the Tenth Circuit Court, dividing 2-1, upheld the Act. The panel majority ruled in a case involving Rick Strandlof, who had been accused of falsely claiming that he was a veteran of the Iraq war who had won a Purple Heart and a Silver Star. The majority said: “Utterances criminalized by the Act are objective and verifiable, and they are particularly valueless under First Amendment principles.”

Petition for Certiorari

Without waiting for the lower courts to reach conflicting results on the constitutional question, the Justice Department last August asked the Supreme Court to step in and uphold the 2006 law, as facially constitutional. Such a facial ruling would preserve the law, although in individual cases a person charged with violating might attempt to argue that the law was invalid under the particular circumstances in that person’s case. The absence of a Circuit Court conflict at that time, the petition argued, should not keep the Court from reviewing the Act’s validity, since the issue was important, there were a number of other cases moving up in the lower courts, and four Circuit Courts were then considering similar challenges to the Act.

Seeking to give the Act a more impressive historical pedigree than its comparatively recent origin, the brief noted that even George Washington had concluded in the 1780s that should any of his troops “have the insolence to assume the badges” of honor that he thought should be conferred on gallant soldiers, “they shall be severely punished.”

The government filing argued that the law does not sweep so broadly that it makes criminal any criticism of the military medal system, and thus it leaves “ample breathing space” for public discussion about such decorations without allowing people to lie about receiving them. Relying upon a dissenting opinion in the Ninth Circuit, the petition said that false statements of fact should receive First Amendment protection only when they are “derivative” of a kind of speech that the Amendment does protect. Unless punishment of a false statement would spill over into a threat to an utterance shielded by the First Amendment, the government said, it should not be subjected to the most rigorous constitutional test — “strict scrutiny.”

Even so, if “strict scrutiny” were the test for the validity of the Stolen Valor Act, the petition argued, it would pass that test. That, it said, is because the Act is “narrowly tailored” to satisfy the government’s “compelling interest” in safeguarding the value of military honors.

The public defenders representing Xavier Alvarez began their opposition by stressing how seldom the 2006 law was being enforced. Their brief identified 45 prosecutions in the first five years the law was in effect, amounting to fewer than ten a year. As to Alvarez’s lies to his water district colleagues, the brief said, “no one detrimentally relied on his false statement or was caused harm in any way; and it did not help him to obtain any tangible or intangible benefit.”

The government’s appeal, the Alvarez opposition said, was relying on only two assertions: that the Act had been struck down, and should not have been. The Court, it added, should await further developments in the lower courts, and should stay on the sidelines for the time being, especially since legislation had been introduced in Congress to try to fix the constitutional defect that the Ninth Circuit had found in the Act: the failure to require some proof of harm that was intended by the utterance resulting from an intentional falsehood.

However, because an act of Congress had been struck down, and because it was the government that was appealing to try to rescue that law,there was little or no surprise that the Court on October 17 granted review. The Court, in fact, granted review after its first look at the case.

Briefs on the Merits

The government’s attempt in its merits brief to rescue the Stolen Valor Act from being struck down focused mainly on a plea for the Court to use a balancing test, treating false statements — even without proof of actual harm — as punishable any time the government has an “important” interest at stake and a law banning it leaves “breathing space” for public discussion of the topic (here, the awarding of military medals and decorations). This was a studied attempt to persuade the Court not to apply the toughest constitutional test — strict scrutiny — to the Act. The brief reads prior Court precedents on false statement laws as embracing the idea that falsity ranks lower under the First Amendment than non-false utterances, and thus those laws can be upheld if they do not shut down public discourse on an issue.

While conceding that the Act does not include any requirement that a claim to a medal must be made with full awareness that it is a lie, that concept of awareness should be read into the law, the brief contended, because it uses the word “represents,” and the dictionary definition of that word suggests that a lie was expressed with serious intent to influence someone else’s action or conduct, or with a definite intent to deceive. Since the Act is a criminal law, the government contended, there has to be some proof of a guilty state of mind for the law to be valid.

In a further effort to head off the challenger’s claim that the law sweeps too broadly, the government brief read into the word “represent” the suggestion that it would exclude “parody, satire, hyperbole, performance, and any other statements that cannot reasonably be understood as factual claims.”

The brief also sought to strengthen the assertion that a government interest of real importance is at stake, not only to protect “the reputation and integrity” of the military honors system from public skepticism that might be bred within the public by false claims by the undeserving, but also to serve what might be called military necessity. Such honors, it argued, “foster morale, mission accomplishments, and esprit de corps within the military.”

Xavier Alvarez’s brief on the merits, from the very outset, sought to keep the Court’s focus on the breadth that his lawyers find in the Stolen Valor Act. That law, the brief’s argument section began, “criminalizes the simple act of lying about oneself.” It went on to say that “everyone lies. We lie all the time. Sometimes we lie to feel better about ourselves, sometimes to make others feel better about themselves, sometimes to help, sometimes to hurt. For good or bad, right or wrong, everyone lies.”

As judges of the Circuit Court who voted to strike down the law had done, the brief provided a litany of the kind of falsity that the Alvarez brief saw being brought within such a federal law’s reach: “exaggerated anecdotes, barroom braggadocio, cocktail party puffery.” This particular law, the brief said, “prohibits the mere utterance or writing of a non-defamatory falsehood about oneself…It seeks to regulate only words.”

Those points are marshaled in order to persuade the Court that the Act is a content-specific restriction on speech — it singles out a particular set of words, and bans them precisely because of what they say. Such restrictions, of course, have usually been tested by the toughest constitutional standard: strict scrutiny. The Alvarez brief thus sought to show that the government, by fashioning a “breathing space” test, was actually seeking to create a new category of unprotected speech. The balancing test the government was advancing, the brief argued, would make free speech depend upon an “ad hoc, case-by-case” analysis.

“No special test is required for false statements,” Alvarez’s lawyers asserted. The categories of speech that the Court traditionally has put outside of the First Amendment’s shelter, the brief said, are few in number, and have a long pedigree in history. Falsity has never been put in that category, it added, and that “should be deemed fatal” to the government’s defense of the Stolen Valor Act.

To the government’s argument that false claims to military honors actually do harm to that system, the opposition brief said it is simply incredible to say “that false claims are actually a serious impediment to the military’s attempts to foster morale.” In the end, that brief asserted, there are remedies for such false claims, such as more speech (government education efforts and denunciations of such claims), and prosecutions for fraud — at least when someone makes such a statement with the specific aim of gaining something of value.

The line-up of amicus briefs is, for the most part, quite predictable: veterans’ organizations, military advocacy organizations and a conservative criminal law advocacy group lined up behind the government and the Stolen Valor Act, free speech and media advocates and civil libertarians lined up behind Alvarez’s attack on the Act. There are a few that fall outside these categories. On the government’s side are 20 states seeking to defend their laws against bomb threat hoaxes, false impersonation and kidnapping claims, and two law professors providing a theoretical analysis that starts with candid support for a denial of First Amendment protection in general to “knowing falsehoods,” but with some exceptions to the general rule. On Alvarez’s side, criminal defense lawyers lined up to assert a general fear that Congress in recent years has been engaged in a “criminalization explosion” threatening civil liberties, and arguing that the Stolen Valor Act shows what can happen from a “rush to criminalize.”

One amicus, straddling the two sides, came from an intellectual property clinic at the University of New Hampshire Law School, urging the Court to decide the case on the theory that a false claim about the Congressional Medal of Honor should be treated as a violation of the Medal of Honor as a trademark.

Analysis

If the Court gets caught up in the patriotic sentiment that surely helped push the Stolen Valor Act through Congress, it very likely would be looking for a way to uphold the law, without explicitly culling all forms of false expression out of the constitutionally protected category. Getting the Court to do just that appeared to be the core strategy of the Justice Department. Although defending the Act with some passion, the Department’s approach is put forth as a measured, even incremental plea to allow this particular statute to remain in force without jeopardizing large amounts of hyperbole, puffery, parody and little white lies.

Xavier Alvarez’s counsel, however, have centered their plea directly on an argument — sometimes quite persuasive with the current Court — that the Justices have no business rewriting the substance of laws in order to salvage their constitutionality. Avoiding an unnecessary nullification of a federal law is permissible, but writing into it something that the legislature itself did not do and did not even seem intent on doing are very different things in constitutional law. From Alvarez’s side, the Justice Department is claimed to be doing the latter, and that argument may have considerable force.

If the government side is somewhat compromised by the arguable appearance that it is trying to craft a piece of legislation not contemplated by Congress, the challenger’s side is somewhat compromised by a bit of hyperbole of its own: it is difficult to imagine a lot of sympathy within the Court for the bald proposition that “everybody lies.” That may be quite true as an objective cultural norm, but it is debatable whether that is a good argument for constitutional interpretation. False statements of a kind that even the government might concede some protection probably have about them a good deal more dignity than that.

The Court’s stubborn refusal over the past three Terms to create explicit new categories of unprotected speech is likely to be at work again in this context, but it is hard to count to five among the present Justices in favor of nullifying this law on its face — that is, banishing any enforcement in any case. What the Justices might do short of that may depend upon just how important the Court finds this particular law to be to the effective functioning of the American armed forces. This Court is not really different from past Courts that have been entirely willing to defer to arguments of military necessity. That may be the subtle perception that mostly favors the Stolen Valor Act.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.